New South Wales Consolidated Acts

MOTOR ACCIDENT INJURIES ACT 2017 - SECT 3.26

3.26 Statutory benefits for loss of capacity to provide gratuitous domestic services

(1) An injured person is entitled to statutory benefits under this Division for the reasonable expenses incurred after the motor accident in employing a person to provide domestic services to the claimant's dependants, but only if--

(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of
"dependants" in this section--the claimant provided the services to those dependants before the motor accident, and

(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c) there is a reasonable expectation that, but for the claimant's injury, the claimant would have provided the services to the claimant's dependants for at least 6 hours per week and for a period of at least 6 consecutive months, and

(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

Statutory benefits are not so payable if the domestic services provided after the motor accident are provided gratuitously.

(2) If a dependant of the claimant received (or will receive) assisted care during a 6-month period for periods that were (or will be) short-term and occasional and for no more than 4 weeks in total during that 6-month period--

(a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least 6 hours, the week should be disregarded if the assisted care was (or will be) provided during that week, and

(b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a 6-month period, any periods during which the assisted care was (or will be) provided in that 6-month period should be disregarded.

(3) The claimant (or the legal personal representative of a deceased claimant) is not entitled to statutory benefits under this section in respect of any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

(4) The provision of domestic services to an injured person's dependants as provided by this section constitutes the provision of treatment and care for the injured person for the purposes of this Division.

(5) In this section--

"assisted care" , in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously)--

(a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements),

(b) if the dependant is a minor (but without limiting paragraph (a))--any care that is provided to the dependant by a person other than the claimant where--

(i) the person is a parent of the dependant (whether derived through paragraph (a) (i) or (ii) of the definition of
"dependants" in this section, adoption or otherwise), and

(ii) the care includes the provision of accommodation to the dependant.

"dependants" means--

(a) such of the following persons as are wholly or partly dependent on the claimant at the time of the motor accident--

(i) a person to whom the claimant is legally married (including a husband or wife of the claimant),

(ii) a de facto partner of the claimant,

(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

(iv) any other person who is a member of the claimant's household, and

(b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time of the motor accident and who is born after that time.

"gratuitous domestic services" means services of a domestic nature for which the person providing the service has not been paid and is not entitled to be paid.